Family Law Keyed to Weisberg

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Lifchez v. Hartigan

Citation. Lifchez v. Hartigan, 735 F. Supp. 1361, 1990 U.S. Dist. LEXIS 4947 (N.D. Ill. Apr. 26, 1990)

Brief Fact Summary. Dr. Lifchez represents a class of plaintiff physicians specializing in reproductive endocrinology and fertility counseling. Plaintiff sued the Illinois Attorney General and Cook County State’s Attorney, seeking a declaratory judgment that the Illinois Abortion Law is unconstitutional.

Synopsis of Rule of Law. The challenged Law is unconstitutionally vague and unconstitutionally invades a woman’s right to privacy.

Facts. Dr. Lifchez represents a class of plaintiff physicians specializing in reproductive endocrinology and fertility counseling. Plaintiff sued the Illinois Attorney General and Cook County State’s Attorney, seeking a declaratory judgment that the Illinois Abortion Law is unconstitutional.

Issue. Is the Law as written unconstitutional?

Held. The Law is unconstitutional due to vagueness and invasion of the right to privacy.
The Law provides that no person shall sell or experiment upon a fetus produced by the fertilization of a human ovum by a human sperm unless such experimentation is therapeutic to the fetus produced. Intentional violation is a misdemeanor, and the Law is not intended to prohibit in vitro fertilization.

Plaintiff claims the failure to define the terms experimentation and therapeutic renders the statute vague, violating his due process rights under the Fourteenth Amendment. Amniocentesis involves withdrawing a portion of the amniotic fluid in order to test it for genetic anomalies. It is designed to provide information about the developing fetus to decide if an abortion is advisable. The process demonstrated the problem of determining when a procedure graduates from experimental to routine. Because of meteoric growth, such processes could go from experimental to routine in a matter of months. A statute is unconstitutionally vague if the mere passage of time can transform conduct from unlawful to lawful.

Many other procedures performed by plaintiff could fall under the law, including in vitro fertilization and many techniques spawned from research into it. The problem is not only if such procedures are experimental, but also if they are therapeutic to the fetus. Embryo transfer, for example, is experimental. It may be therapeutic for the woman trying to get pregnant, but not necessarily for the embryo. Likewise genetic screening of in vitro embryos is non-therapeutic to the embryo. While it may fall within the statute’s in vitro exception, a failed implantation could subject plaintiff to criminal liability.

Super-ovulation, which involves administering various hormones to induce ovulation resulting in multiple ova, may require experimentation with certain elements for success. Another class of procedures designed to address maternal complaints are designed exclusively for the benefit of the pregnant woman, and has the potential to affect the fetus. This Court concluded that the scienter requirement did not save the Law from being unconstitutionally vague.

The Law is also unconstitutional because it impermissibly restricts a woman’s fundamental right of privacy, particularly her right to make reproductive choices free of governmental interference with those choices. Embryo transfer and chorionic villi sampling are both experimental and not necessarily therapeutic. Both, however, fall within a woman’s zone of privacy as recognized by Roe v. Wade. There is no compelling interest in preventing these procedures, which may give information about the fetus which can lead to a decision to abort.

Discussion. The Court found that the Law was unconstitutional due both to vagueness violating Due Process and because it restricts a woman’s fundamental right to privacy.